In Albany, NY, the Assembly passed a bill, Lavern’s Law, sponsored by a majority of the New York State Senate, and endorsed by Gov. Andrew M. Cuomo. However, the bill did not come up for a final vote as a result of actions by Senate majority leader, John J. Flanagan, a Republican, so the bill essentially died.
Lavern’s Law would have assisted injured victims of medical malpractice with a day in court.
The bill is named for Lavern Wilkinson, a Brooklyn, NY female, who had curable form of lung cancer. Wilkinson’s cancer was untreated when physicians at Kings County Hospital did not inform her about a mass noted on an X-ray taken three years earlier.
When Wilkinson died, her daughter was barred from filing a lawsuit against the allegedly negligent hospital since in New York a victim has two and a half years from the time of the medical error to file suit. The statute of limitations is not triggered from the time the mistake was discovered or should have been discovered, which is the standard in 44 states. Lavern’s Law would have adopted the same timing in New York.
In 1999 the Institute of Medicine at the National Academy of Sciences published a study on the errors that hospitals made: “To Err is Human.” The study concluded that at least 44,000 patients died and others injured in hospitals annually from medical mistakes. A similar study around 2011 in the journal HealthAffairs estimated that avoidable deaths were likely 10 times higher.
Lobbiests who represent the views of physicians and hospitals opposed Lavern’s Law. The healthcare lobbies likely had issues with the bill allowing more medical malpractice lawsuits to be filed. The reasoning of the lobbies may not be on point. Even though there are frequent avoidable medical errors, few result in medical malpractice lawsuits according to a 2013 study, which determined about 1 percent of medical mistakes ended up in a claim.
It takes expert witnesses to identify medical errors caused by negligence so most consumer complaints are about improper prescribing, sexual misconduct, and fraud. When a victim wins a medical malpractice lawsuit, awards are usually modest. Thirty-three states restrict the amount of compensation allowed for pain and suffering. According to the Department of Justice, the median award is $400,000 in bench trials, and $631,000 in jury trials.
A small percentage of malpractice cases result in a physician’s hospital privileges being curtailed. Between 2011 and 2013, there were approximately 7,400 complaints against physicians filed annually with the New York State Office of Professional Medical Conduct. Of the complaints filed, an average of 287 per year, less than 4 percent, ended up in serious sanctions against a doctor, such as the loss, suspension, or restriction of licenses.
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